dissenting to denial of appellant’s second motion for rehearing.
I respectfully dissent to the majority’s denial of M.D.H.’s second motion for rehearing. Paragraph two of the State’s petition alleged that M.D.H. committed the offense of resisting arrest by using force against a peace officer, “to wit: pulling away from him.” Prior to the adjudication hearing, M.D.H. stipulated to the State’s evidence on the resisting arrest charge. During the adjudication hearing, the State produced evidence that M.D.H. not only pulled away from the officer, but also that she attempted to strike the officer with her hand as he attempted to effectuate the arrest. M.D.H.’s attorney immediately advised the juvenile court that M.D.H. did not intend to stipulate to the striking allegation:
[S]he did not attempt to strike anybody. She attempted to pull away, and that’s what I indicated earlier that it was agreed and stipulated testimony that she pulled away from the police officer, but not that she attempted to strike the police officer.
*322In response, the court advised M.D.H. that it would “consider the evidence only as it relate[d] to the second paragraph, the evading [sic] arrest offense.” In addition, at the close of the adjudication hearing, the juvenile court stated, “I will find then based on that stipulated evidence that you have engaged in delinquent conduct as alleged in paragraph two of the State’s petition. ” [Emphasis added.]
Although the record in this case is somewhat unclear, it does not appear that M.D.H. intended to stipulate to the evidence that she attempted to strike the officer, nor does it appear that the trial court considered the striking evidence in adjudicating M.D.H. delinquent. Because the trial court adjudicated M.D.H. delinquent for resisting arrest based solely upon the evidence that she pulled away from the police officer, this court must necessarily consider whether pulling away, standing alone, is legally and factually sufficient to constitute the offense of resisting arrest. Accordingly, I would grant M.D.H.’s second motion for rehearing and address this issue.